Monday, June 8, 2015

Is Canada’s Judge Advocate General violating the right to the presumption of innocence?

According to the online transcripts of Canadian courts-martial, as the military judge addresses the accused for sentencing, he often underscores that the most important and most basic right in any tribunal is the right of the accused to the presumption of innocence.

The presumption of innocence for the accused is believed to be the most important element of part of criminal law proceedings, meaning that the accused does not have to prove innocence. The burden of proof of guilt is the prosecutor’s. Without irrefutable proof that the accused has committed an infraction, he or she is innocent.

But is this the reality of Canada’s Code of Service Discipline?

Following a Canadian Military Police investigation in 1994 that found no evidence of wrongdoing by the accused, the senior legal officer for the Atlantic region wrote a letter that said, in part: “While (name withheld) appears to have escaped formal disciplinary action . . . .”

The letter was classified “PROTECTED B (Solicitor/Client Privilege)” which, in effect, would have kept this document from discovery by the accused while it was available to his superiors and colleagues.

It was ultimately “leaked” to the accused, who repeatedly requested that the Judge Advocate General expunge the letter. JAG refused to accede to this request.

The accused brought the letter to the attention of the military’s Ombudsman who asked the Canadian Forces Provost Marshal to review the investigation. The Provost Marshal responded by highlighting, “specific areas of concern” with the investigation, and that “the conduct of the Halifax MP investigation was not beyond reproach. . . . best police practices were not adhered to.”

The Provost Marshal continued with “my sincerest apology . . . for any undue hardship arising from the lapse of judgment by Military Police and shortcomings in work performance.”

When the Provost Marshal’s letter was brought to JAG’s attention with the comment that the Provost Marshal’s letter renders the JAG letter fruit of the poisonous tree, the request was rebuffed again.

The Canadian Judge Advocate General still refuses to address this dichotomy between the rights of the accused and the privilege of the legal branch. This begs the question of how many other Canadian military members are unaware that such letters may be on their files and are left to wonder why their career advancements have abruptly ended.